On Wednesday, former President Donald Trump’s lawyers sent a desperate, 10-page letter to Rep. Mike Turner, chair of the House Intelligence Committee. The punch line comes in its conclusion: “DOJ should be ordered to stand down” in Special Counsel Jack Smith’s case against Trump for obstructing justice in his 18 months of stonewalling the return of classified documents improperly held at Mar-a-Lago.
Of course, Congress has no such power. Ironically, the letter achieved something completely unintended. It effectively confirmed that Trump has no viable defense against the likely Justice Department charges for Trump’s obstruction.
The letter also revealed for the first time that the classified documents recovered in the August 7, court-approved search of Trump’s country club home may include briefings of foreign leaders.
It’s hard to know what Trump was trying to achieve beyond “spin.” No crimes to see here, the letter lamely contends.
His lawyers assert that Trump didn’t knowingly possess or retain top-secret documents at Mar-a-Lago. His aides were just sloppy, the letter says, in the rushed process of leaving the White House, and Trump didn’t even know the classified documents were there. Even Vice Presidents Mike Pence and Joe Biden inadvertently took classified documents after their time in office.
If these contentions are a preview of Trump’s defenses to an indictment from Smith’s grand jury, Jack Smith can rest easy. The arguments are so abysmally weak that they leave any knowledgeable observer with a simple inference: Trump and his lawyers know an indictment is coming soon and there’s nothing they can do about it but offer smoke and mirrors.
Like asking Congressman Turner to investigate the need for legislation to address the lack of controls on classified documents that elected officials unintentionally take when leaving public service. Here’s the problem for the former president and his letter: Jack Smith has mountains of evidence that contradict Trump’s claim that his improper possession and retention of those classified documents was inadvertent.
For example, the FBI has interviewed multiple advisers whom Trump told that his Mar-a-Lago collection of government documents is “not theirs, it’s mine.” Claims of inadvertence don’t easily square with claims that he owned the materials and intended to keep them.
And that’s hardly all. The government has evidence that Trump personally reviewed the documents being taken from the White House, and even participated in the packing. So the letter’s claim that it was all his aides’ fault falls apart.
And so does the letter’s repeated whining that Trump is being treated unfairly compared to Joe Biden and former Vice President Mike Pence. Neither claimed that classified documents discovered among their papers after government service were theirs. Neither delayed in cooperating to get the government papers returned once they were discovered.
But, Trump’s April 26 letter protests, he tried really hard to cooperate. Why is he the only one, his lawyer’s letter laments, whose home was subjected to a non-consensual FBI search?
Trump’s lawyers never mention 18 months of Trump’s stonewalling before that search.
Then there’s the brush-off the letter gives to the most egregious evidence of obstruction and non-cooperation. On June 3, 2022, Justice Department official Jay Bratt visited Mar-a-Lago to seek compliance with a May 2022 grand jury subpoena for all classified documents in Trump’s possession. Trump lawyer Evan Corcoran provided Bratt with a sworn certification from another Trump lawyer, Christina Bobb.
It attested that, based on information provided to her as the custodian of former White House records, “[a] diligent search was conducted of the boxes that were moved from the White House to Florida. . . , in order to locate any and all documents that are responsive to the subpoena.”
That deceit, evidently intended to take Bratt off the trail, was remarkably ill-advised, especially when combined with ever so slightly suspicious simultaneous conduct – that Corcoran “explicitly prohibited” Bratt from examining the contents of boxes inside the key document storage room.
It’s clear that no diligent search by Trump’s agents was ever conducted. The FBI found more than 100 classified documents two months later, including some in Trump’s personal desk drawer.
How does Wednesday’s letter spin Bobb’s false affidavit? It says, “To be clear, the certification stated that a diligent search was conducted, and all responsive documents found were provided—not that the search turned up all possible materials. . . .”
They just happened to have missed 18 documents marked “Top Secret,” 54 documents marked “Secret,” and 31 documents marked “Confidential.” Let’s hope they don’t try that approach in court.
In March, a federal judge applied the “crime/fraud” exception to attorney-client privilege to compel Corcoran to testify to a grand jury about his conversations with Trump before that certification was written. That means that Special Counsel Smith’s in camera submissions convinced the court that Trump’s conversation included evidence of a crime. It doesn’t take a prosecutor to infer that the central crime is likely obstruction of a grand jury investigation.
Trump can run to Mike Turner with a feckless letter designed to distract. But he can’t hide from coming charges for obstructing the return of government secrets that weren’t his.